Equitable Distribution and the Marital Home: Should the Home Be Distributed to One of the Parties or Sold?

One of the challenging issues that divorcing couples are likely to face is what to do with their marital home. Often, the equity in the marital home represents one of the largest marital assets. In most situations, there are only two options for dealing with the marital home as part of the division of marital assets and debts: (1) the marital home must be distributed to one of the parties, or (2) it must be sold and the net proceeds distributed in a manner that the parties or the court determines is fair and equitable.

Of these two options, distributing the home to one of the parties so that party may reside in the home or sell it independent of the other spouse is generally the simplest option. While it may be necessary to have the home refinanced to remove the other spouse’s name from the mortgage obligation, this may be preferable to putting the parties in a position where they may need to have continued contact to make decisions related to the sale of their marital home. However, it is not always possible or desirable for the marital home to be distributed to one of the parties, particularly in situations where there are not enough marital assets to balance the distribution of the marital estate or neither party can afford to maintain the mortgage.

When the parties agree, or the court orders, that the marital home be sold, there are many potential conflicts that can arise that are best addressed from the onset. Some of the issues that should be considered when divorcing couples are selling their home include the following:

Who should reside in the home while it is in the market for sale?

Who should pay the mortgage, taxes, insurance, maintenance, and other expenses while the home is on the market for sale?

What if the party residing in the home attempts to thwart the sale of the home by refusing to maintain the lawn or make the home available for showings?

Who will pay for any extraordinary maintenance, such as replacing an appliance?

How will a realtor be selected?

How will the listing price be set?

How will sales price be determined?

How will the net sales proceeds be distributed between the parties?

Will the party paying the mortgage and other expenses be entitled to receive any credit for paying such expenses before the net sales proceeds are divided between the parties?

Experienced family law attorneys are well aware of the broad spectrum of complex issues that can arise as part of equitable distribution matters. Retaining an experienced family law attorney to represent you in your equitable distribution matter can help you avoid pitfalls and other problems that may lead to further litigation and conflict. The family law attorneys at Cheshire, Parker, Schneider, and Bryan have extensive experience in the fine details of family financial settlements. We can help you solve problems before they become problems.

The information contained in this article and throughout this website is correct and accurate as of the date of publication of the content. While accurate and informative, the content is provided to help you make decisions in choosing a lawyer to help you through your divorce. You should not rely on this general information as legal advice. Please seek advocacy with an experienced family law attorney in order to gain full understanding of the elements of your family law matter. Daphne Edwards is available for comprehensive and confidential consultation by appointment. Call 919-833-3114 to schedule yours today.